Buzzfeed, Inc. v. U.S. Dep't of Air Force

BUZZFEED, INC., Plaintiff, v. U.S. DEPARTMENT OF THE AIR FORCE, Defendant.

1:19-cv-01337-ALC-SN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 3, 2020

OPINION AND ORDER

ANDREW L. CARTER, JR., District Judge:

Buzzfeed, Inc., a media corporation, submitted three Freedom of Information Act (FOIA) requests to the United States Department of the Air Force seeking information related to possible attendees of tours of Air Force One. The Court now considers motions for summary judgment by these two parties regarding whether certain redactions applied by the Air Force are authorized by 5 U.S.C. § 552(b)(6), "Exemption 6", which allows the withholding of personally identifying information unless the public interest in that information outweighs the individuals' privacy concerns. For the reasons that follow, the Court GRANTS summary judgment in favor of the Air Force and DENIES Buzzfeed summary judgment.

BACKGROUND

This case relates to FOIA requests seeking information about private individuals that may have received tours of Air Force One. There are three sources of requests for tours: (1) official requests, via the White House Military Office ("WHMO"), Presidential Airlift Group Commander and Air Force; (2) personal requests, for family and close friends of Presidential Airlift Group personnel; and (3) semi-official requests, from vendors, ground service specialists, etc., who are given a tour as a courtesy. Declaration of Lt. Col. Brent F. Osgood dated April 2, 2020, ECF No. 28 ("Osgood Decl.") ¶ 14. Tours are provided regularly to military members, their families, and other federal employees. Osgood Decl. ¶ 13. Some individuals, who may know those higher up in the executive branch, may receive invitations in a more personal manner, and the WHMO then makes their arrangements via email. Osgood Decl. ¶ 14. As these individuals and their family may not work for the military or even the federal government, the information required by the forms are obtained less formally, although the screening of individuals is similar. Osgood Decl. ¶ 14.

On November 16, 2017, via email to the Air Force FOIA office, Buzzfeed made a FOIA request for copies of the following records: "All spreadsheets, PDFs, and other documents containing lists of civilians invited or scheduled to partake in tours of Air Force One between Jan. 20, 2017 and the date on which the search for these records is completed." (Request #1). Osgood Decl. ¶ 3. Buzzfeed specifically asked that the names of the tour participants not be redacted, claiming the public interest in discovering those names outweighed any privacy interest of the individuals. Osgood Decl. ¶ 3.

On June 28, 2018, the Air Force responded to Request #1 by producing 62 pages of partially redacted responsive records: 27 pages of spreadsheets listing the dates and locations of various Air Force One tours, and providing names and other personal details for the individuals scheduled to take those tours; and 35 pages of Presidential Aircraft Tour Request forms, which are documents used by military personnel to request Air Force One tours for their friends and family members. Osgood Decl. ¶ 4.The Air Force redacted the names and other personally identifying information of the civilians and military personnel that appeared in the records pursuant to Exemption 6. Osgood Decl. ¶ 4. Buzzfeed administratively appealed the Air Force's response to Request #1, challenging, among other things, the application of Exemption 6. Compl. ¶¶ 20-22.

In July 2018, Buzzfeed published an article based on records produced by the Air Force asserting that "[s]ome members of President Donald Trump's exclusive Florida clubs appear to have been invited to an Air Force One tour last year." Tarini Parti & Jeremy Singer-Vine, Some Members Of Trump's Exclusive Clubs Appear To Have Been Invited To An Air Force One Tour, BUZZFEED, Jul. 9, 2018, available at https://www.buzzfeednews.com/article/tariniparti/trump-air-force-one-mar-a-lago-tour (last visited November, 2, 2020) ("Buzzfeed Article"). Specifically, the Buzzfeed Article alleged that three members of the Mar-a-Lago club and their wives received a tour of Air Force One in Palm Beach, Florida on February 18, 2017. See id. The Buzzfeed Article identified certain Mar-a-Lago members as possible recipients of Air Force One tours based on partially unredacted email addresses in the documents produced by the Air Force in response to Request # 1. See id.

On November 13, 2018, Buzzfeed submitted an additional request ("Request #2") to the Air Force for "copies of all records inviting individuals to participate in tours or visits of Air Force One" from January 1, 2016, through the date on which the search was completed. Osgood Decl. ¶ 5. In response, following the commencement of this litigation, the Air Force released 29 partially redacted pages of e-mails between Air Force One personnel and various tour invitees. Osgood Decl. ¶ 6. Those e-mails related to tour requests made outside of formal Air Force procedures: for example, requests from White House staffers or other non-military members of the Executive Branch. Osgood Decl. ¶ 6. The Air Force withheld the personally identifying information in these records—names, e-mail addresses, and physical addresses—pursuant to Exemption 6. Id. These emails to not confirm whether the person actually attended the tours. Declaration of Lieutenant Colonel Brent F. Osgood dated June 9, ECF No. 34 ("Second Osgood Decl.") ¶ 4. It was subsequently confirmed that these records do not "identify tour requesters" or "contain the namesof any White House staffers or other high-ranking members of the Executive Branch who requested these tours for the invitees." Second Osgood Decl. ¶ 5.

On November 13, 2018, Buzzfeed submitted a request ("Request #3") for "copies of all records that document any aspect of the procedures pertaining to Air Force One tours, including but not limited to: Records outlining the procedures for the issuance of invitations to tour Air Force One; Any and all records describing eligibility requirements of potential Air Force One tour attendees; Procedures outlining use of background checks of potential Air Force One tour attendees; [and] Records outlining the procedures for conducting the tours." Osgood Decl. ¶ 7. During the pendency of this litigation, the Air Force produced four records in response to that request, withholding only the names of military personnel that appeared in two of the records. Osgood Decl. ¶ 8.

Buzzfeed commenced this action on February 12, 2019, challenging the Air Force's application of Exemption 6 in the records responsive to Request #1, and the lack of production of records responsive to Requests #2 and 3. Compl. ¶¶ 36-49. In light of the Air Force's subsequent productions of records and the parties' discussions, Buzzfeed limited its challenge to the application of Exemption 6 "to the names of the people taking tours and the names of the people requesting tours on their behalf." Osgood Decl. ¶ 9.

On April 2, 2020, the Air Force filed a motion for summary judgment that their Exemption 6 redactions are proper. ECF No. 26. Therein, the Air Force argues it is entitled to summary judgment because the records at issue here are the types of records protected by Exemption 6, the privacy interests of the individuals identified in the records clear the Exemption's minimal threshold, and those privacy interests outweigh any public interest in disclosure. This motion was supported by the Declaration of Lieutenant Colonel Brent S. Osgood, Chief of the InformationLitigation Branch of the General Litigation Division of the Air Force Legal Operations Agency (AFLOA/JACL) at Joint Base Andrews, Maryland.

Buzzfeed filed a motion for summary judgment on May 4, 2020. ECF No. 30. Buzzfeed contends it is entitled to summary judgment that Exemption 6 is not applicable because Exemption 6 does not apply to the records at issue here, and any privacy interests are outweighed by the public interest in understanding what the government was up to. In its summary judgment motion, Buzzfeed also further limited its request that redacted material be release to "the names of the 'high ranking executive branch officers" that requested tours and their "personal friends or family". ECF No. 30 at 2 n.1.

The Air Force opposed Buzzfeed's motion on June 10, 2020. ECF No. 33-34. The accompanying Declaration of Lieutenant Colonel Osgood indicates that Buzzfeed further narrowed the scope of its request for disclosure to "such names that appear in the 29 pages of e-mails the Air Force produced in response to 'Request #2'." Second Osgood Decl. ¶ 3. Buzzfeed filed a reply on July 1, 2020. ECF No. 38.

FREEDOM OF INFORMATION ACT AND EXEMPTION 6

"FOIA was enacted in order to 'promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed.'" Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 355-56 (2d Cir. 2005) (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999)). "FOIA strongly favors a policy of disclosure and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act," which must be narrowly construed. Nat'l Council of La Raza, 411 F.3d at 355-56 (citations omitted). "The government bears the burden of demonstrating that an exemption applies to each item ofinformation it seeks to withhold, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure." Florez v. Cent. Intelligence Agency, 829 F.3d 178, 182 (2d Cir. 2016) (quoting Ctr. for Constitutional Rights v. C.I.A., 765 F.3d 161, 166 (2d Cir. 2014)). However, "[a]ffidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden," and such...